Overview

The Environment Protection and Biodiversity Conservation Act 1999 (the Act) was enacted to address the need for a comprehensive framework to protect and conserve the environment and biodiversity, including threatened species. The Act provides for the establishment of a list of threatened species, which are categorised based on their conservation status. Pursuant to section 178, the Minister for the Environment is required to establish this list and has the authority to amend it as necessary, as outlined in section 184(c). Recently, a legislative instrument was introduced to amend the list by transferring the species Emoia nativitatis from the Critically Endangered category to the Extinct category, reflecting that there is no reasonable doubt that the last member of this species has died. This amendment was made following consultation with the Threatened Species Scientific Committee and other relevant experts, in line with the processes outlined in the Act. The policy objective remains to ensure that the list accurately reflects the conservation status of species, thereby facilitating targeted and effective biodiversity conservation efforts.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs the protection and conservation of biodiversity across Australia, including the management of threatened species. Under this Act, the Minister for the Environment is mandated to establish a list of threatened species categorised as Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The Act applies to all native species within the Commonwealth's jurisdiction, and its provisions are enforced nationally, extending to all states, territories, and external territories of Australia. This legislative instrument amends the list of threatened species by transferring Emoia nativitatis from the Critically Endangered category to the Extinct category. The decision to transfer the species was based on advice from the Threatened Species Scientific Committee and public consultation, ensuring that all relevant criteria and expert opinions were considered. The amendment reflects the species' eligibility for the Extinct category based on the absence of reasonable doubt regarding the extinction of the last member of that species. This legislative instrument is compatible with human rights as it does not engage any of the applicable rights or freedoms as recognised in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The main operative sections of the legislative instrument (F2021L00188) pertain to the amendment of the list of threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Specifically, section 178 of the Act mandates the Minister to establish a list of threatened species, categorised as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Section 184(c) allows the Minister to amend the list by transferring species from one category to another, as long as the criteria for the new category are met. The instrument in question transfers the species Emoia nativitatis from the Critically Endangered category to the Extinct category, in compliance with the criteria set out in the EPBC Regulations. The transfer process adheres to the requirements of section 186(1), ensuring that the species meets the eligibility criteria for the Extinct category, and section 179(1), which permits the inclusion of a species in the Extinct category if there is no reasonable doubt that the last member of that species has died. The Act imposes several obligations on the Minister and other parties involved in the management and protection of threatened species. The Minister is required to consult with the Threatened Species Scientific Committee, as stipulated in subsection 189(1), when considering amendments to the list. Additionally, the Minister must provide public notice of the proposed amendment and make a consultation document available for a minimum of 30 business days, in accordance with subsection 194M(3). The Scientific Committee is tasked with conducting targeted consultations with relevant experts, including researchers from Australian universities, state and territory governments, and non-government organisations. The Scientific Committee must then prepare a written assessment of the species’ eligibility for transfer between categories and provide this assessment to the Minister. The Minister, in turn, must consider the Scientific Committee’s assessment and any relevant public comments before making the amendment. Breaching the requirements of the Environment Protection and Biodiversity Conservation Act 1999 can lead to significant legal consequences. While the specific offences and penalties related to the amendment of the list of threatened species are not detailed in the explanatory statement, the Act generally provides for both civil and criminal penalties for non-compliance with its provisions. For example, section 504 of the Act imposes a maximum penalty of $222,200 for offences related to the unauthorised taking of a listed threatened species. Additionally, section 505 provides for a maximum penalty of $1,111,100 for offences related to the unauthorised trade in listed threatened species or their products. The Act also provides for civil penalties, including pecuniary penalties, injunctions, and damages, for breaches of its provisions. Furthermore, the Minister may issue directions or orders to enforce compliance with the Act, and failure to comply with these directions or orders can result in further penalties.